Court File and Parties

COURT FILE NO.: 2196/10 DATE: 2016-10-04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Katherine Jenny Smith and Dan Smith, Plaintiffs AND: Dr. Rajni Saraf-Dhar, Dr. Boulos Gharzarian, Bluewater Health, Donna Nisbet R.N., Kathy Kolotylo R.N., Steve Grant R.N., Elise McLean R.N. and Dianne McKillican R.N., Defendants

BEFORE: Heeney R.S.J.

COUNSEL: J. Dobson, for the Plaintiffs Mark D. Lerner and Lidiya Yermakova, for the Defendants Dr. Rajni Saraf-Dhar and Dr. Boulos Gharzarian Logan Crowell for the Defendants Bluewater Health, Donna Nisbet R.N., Kathy Kolotylo R.N., Steve Grant R.N., Elise McLean R.N. and Dianne McKillican R.N.

HEARD: June 21, 2016 at London

Endorsement

[1] I have now reviewed the submissions of counsel as to costs.

[2] The defendants have been entirely successful in their defence of the motion, brought by the plaintiffs, to strike their jury notices.

[3] In considering the relevant factors in Rule 57.01 of the Rules of Civil Procedure, the first is the principle of indemnity. Given the total success of the defendants, they are presumptively entitled to costs.

[4] The next factor is the amount in dispute. The amount claimed has been increased, on the plaintiffs’ earlier motion, to $1,500,000, which is a substantial amount. The issue on this motion was one of importance, as it related to the right of the defendants to a trial by jury.

[5] Counsel largely agreed on the applicable law, which reduced the complexity of the motion. However, the matter still took 4 hours to argue, and necessitated a reserved judgment. I consider it to have been of moderate complexity.

[6] As to conduct which tended to shorten or lengthen unnecessarily the duration of the proceeding, the plaintiffs point to the filing of the jury notices themselves by the defendants, and argue that this has lengthened the proceeding. However, their right to do so has now been vindicated, so it cannot be argued that they acted unreasonably in doing so.

[7] There is no basis upon which to order either that each side absorb their own costs, or that costs be reserved to the trial judge, as suggested by the plaintiffs. The plaintiffs insisted on proceeding to argue this motion, despite the apparent willingness of the defendants to have the motion withdrawn on a without costs basis. They rolled the dice and were unsuccessful. I conclude that the defendants are entitled to partial indemnity costs.

[8] The real issue is quantum.

[9] The total costs incurred on behalf of the hospital defendants was $10,433.86. Of that, they are seeking $6,260.31 on a partial indemnity basis.

[10] The total costs incurred on behalf of the two doctor defendants was $12,267.85. Of that, they are seeking $7,974.10 on a partial indemnity basis.

[11] The plaintiffs argue that they should not be made to pay two sets of costs. However, there are two clearly defined sets of defendants, whose right to a jury trial was at stake and who were entitled to separate representation. Junior counsel argued the motions for both sets of defendants, and each addressed separate issues so as to avoid a duplication of effort.

[12] I do agree that Mr. Lerner’s attendance was unnecessary. He made only a few brief submissions, and there is nothing that he said that could not have been advanced by Ms. Yermakova. The motion was not of sufficient complexity to justify having both senior and junior counsel attend.

[13] The plaintiffs have pointed out that in the Costs Outline served on June 16, 2016 by counsel for the defendant doctors, prior to arguing the motion, they showed their partial indemnity costs to be $5,340.93. However, there is no indication that this outline included the costs of preparing for or appearing on the motion. The Costs Outline now relied upon claims partial indemnity costs of $7,974.10, which does include fees for preparation and attendance on the motion.

[14] The hospital defendants served a Costs Outline dated June 17, 2016 which claimed partial indemnity costs of $5,391.80. That figure included $864 for preparation for the motion and $564 for oral argument. That can be contrasted with the Bill of Costs they now submit, which claims partial indemnity costs of $6,260.31.

[15] While docketed time is an important consideration, a costs award ultimately represents what the court determines to be a fair and reasonable amount for the unsuccessful party to pay. The amount of costs that an unsuccessful party could reasonably expect to pay is a relevant factor, pursuant to Rule 57.01(1)(0.b). A costs award must be within the reasonable expectation of the unsuccessful parties in order to preserve access to justice. As Armstrong J.A. said in Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.) at para. 38:

In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor.

[16] It is obvious that the expectations of the plaintiffs as to their potential jeopardy regarding a costs award would largely be dictated by the Costs Outlines served in advance of the motion. It would, therefore, be unfair to the plaintiffs to make an award against them now that is greatly in excess of the amounts claimed in those Outlines.

[17] Counsel for both the plaintiffs and the defendants rely on the history of prior motions to justify their position on costs. In one motion, the plaintiffs were ordered to pay costs of $10,000 in any event of the cause, following an unsuccessful motion to add another defendant doctor. Motions and cross-motions were brought by both parties, and were withdrawn on consent. Both sides were ordered to absorb their own costs. The last motion was the plaintiffs’ successful motion to amend the Statement of Claim to increase their claim for damages, where costs were reserved to the trial judge.

[18] In my view, there is nothing in this history that has relevance to the costs order that should be made on the present motion.

[19] I find the costs claimed by the hospital defendants to be fair and reasonable, but they should be discounted to bring them into line with the Costs Outline served in advance of the motion. Costs are awarded to them fixed at $5,400.

[20] As to the doctor defendants, the difference between their Costs Outline and the amount now claimed might largely be attributable to the fact that the fees for Mr. Lerner have increased from 1 hour to 8.3 hours, reflecting preparation and attendance on the motion. At a partial indemnity rate of $357.50 per hour, that amounts to $2,609.75. As already noted, I have concluded that his preparation and attendance on this motion was unnecessary. However, the docketed time for Ms. Yermakova, who argued the motion, also increased by 17.1 hours, to account for preparation and attendance to argue the motion. At her partial indemnity rate of $130 per hour, that amounts to $2,223. These numbers leave me puzzled, since the Costs Outline only claims an increase of $2,633 for preparation and attendance, which is much lower than the total increase in fees of both senior and junior counsel.

[21] The initial Costs Outline should have included some provision for preparation and argument of the motion. There is no compelling reason why the costs of the doctor defendants should be substantially different than the costs of hospital defendants. They should also bear some relationship to the costs of the plaintiffs on the same motion, which were $4,629.42, according to their Costs Outline dated June 17, 2016.

[22] Bearing all of the above in mind, costs to the defendant doctors are fixed at $5,900.

[23] Costs will be due and payable within 60 days from this date.

Regional Senior Justice T. A. Heeney Date: October 4, 2016